People v. Joaquin, A152786

• Court: California Court of Appeals
• Writing for the Court: SIMONS, Acting P.J.
• Citation: 272 Cal.Rptr.3d 267,58 Cal.App.5th 173
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey Allan JOAQUIN, Defendant and Appellant.
• Decision Date: 04 December 2020
• Docket Number: A152786

58 Cal.App.5th 173
272 Cal.Rptr.3d 267

The PEOPLE, Plaintiff and Respondent,
v.
Jeffrey Allan JOAQUIN, Defendant and Appellant.

A152786

Court of Appeal, First District, Division 5, California.

Filed December 4, 2020

Marylou Hillberg, Sebastopol, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.

SIMONS, Acting P.J.

58 Cal.App.5th 175

Jeffrey Allan Joaquin (Appellant) appeals from a judgment sentencing him to 12 years in prison after he pled no contest to attempted murder and admitted allegations that he had personally used a firearm and had previously served a prison term. ( Pen. Code, §§ 187, subd. (a), 664, 667.5, subd. (b), 12022.5, subd. (a).)¹ He contends the case must be remanded for resentencing because the Legislature subsequently passed Senate Bill No. 620 (Senate Bill 620) (Reg. Sess. 2017-2018), which amended section 12022.5 to give trial courts discretion to strike firearm use enhancements in the interests of justice. ( § 12022.5, subd. (c), Stats. 2017, ch. 682, § 2.)

We need not address that claim because Appellant's plea agreement has been rendered unenforceable by Senate Bill No. 136 (Senate Bill 136) (Reg. Sess. 2019-2020), effective January 1, 2020.² Pursuant to that enactment, the prior prison

272 Cal.Rptr.3d 269

term enhancement is inapplicable to Appellant. We direct the trial court to strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b), which has the effect of releasing the parties from the agreement. On remand, the parties may enter into a new plea agreement, but, if they do, the trial court may not impose a longer sentence than that in the original agreement.³

BACKGROUND

On March 21, 2017, appellant fired a shotgun at the victim from a distance of about 60 feet. He was charged by felony complaint with three counts:

58 Cal.App.5th 176

premeditated attempted murder with an allegation that he personally and intentionally discharged a firearm ( §§ 187, subd. (a), 664, 12022.53, subd. (c) ), possessing a firearm having been previously convicted of a felony (§ 29800, subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). The complaint also included a firearm use allegation and a prior prison term allegation. ( §§ 12022.5, subd. (a), 667.5, subd. (b).) The prior prison term was based on a conviction for infliction of corporal injury on a spouse or cohabitant (§ 273.5).

Appellant entered into a plea agreement that called for him to plead no contest to attempted murder without premeditation and to admit a firearm use allegation under section 12022.5, subdivision (a) and a prior prison term under section 667.5, subdivision (b). The parties stipulated to a sentence of 12 years: the seven-year middle term for unpremeditated attempted murder, the four-year middle term for the firearm use allegation, and one year for the prior prison term. The trial court accepted the plea in August 2017 and imposed the 12-year sentence at a September sentencing hearing. At a subsequent hearing, the court recalculated Appellant's presentence credits to comply with section 2933.1. This appeal followed.⁴

DISCUSSION

Under the version of the statute in effect when Appellant was sentenced, section 667.5, subdivision (b) required a one-year enhancement for each prior prison term served for "any felony," with an exception not applicable here. (Stats. 2014, ch. 442, § 10.) Senate Bill 136 substantially narrowed the enhancement, limiting its application only to a prior prison term served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b); Stats. 2019, ch. 590, § 1; see also People v. Hernandez (2020) 55 Cal.App.5th 942, 946-947, 269 Cal.Rptr.3d 824 ( Hernandez ).)⁵ The prior prison term at issue in the present case was imposed for infliction

272 Cal.Rptr.3d 270

of corporal injury on a spouse or cohabitant (§ 273.5), which is not a qualifying offense under the current version of section 667.5, subdivision (b). Senate Bill 136 applies retroactively to non-final judgments. ( Hernandez , at p. 947, 269 Cal.Rptr.3d 824 )

In People v. Griffin (Nov. 30, 2020) ––– Cal.App.5th ––––, 272 Cal.Rptr.3d 170, 2020 Cal.App. LEXIS 1138 ( Griffin ), this court applied the reasoning of the Stamps decision in the

58 Cal.App.5th 177

context of Senate Bill 136. This court first held that the section 667.5, subdivision (b) enhancement imposed under the plea agreement in the case had to be stricken, but that doing so would render the remainder of the agreement unenforceable. ( Griffin , at p. ––––, 272 Cal.Rptr.3d 170, 2020 WL 7022460, *2, 2020 Cal.App. LEXIS 1138, 4 ; see also Hernandez , supra , 55 Cal.App.5th at pp. 948–949, 269 Cal.Rptr.3d 824 [reaching same conclusion].) Consistent with Stamps, we concluded that the legislative history to Senate Bill 136 did not demonstrate the Legislature intended to authorize the trial court to " ‘exercise its discretion to strike the enhancement but otherwise maintain the plea bargain.’ " ( Griffin , at p. ––––, 272 Cal.Rptr.3d 170, 2020 WL 7022460, *3, 2020 Cal.App. LEXIS 1138, 6, quoting Stamps , supra , 9 Cal.5th at p. 692, 264 Cal.Rptr.3d 769, 467 P.3d 168 ; see also Hernandez , at p. 947, 269 Cal.Rptr.3d 824.)

Stamps involved an enactment that granted the trial court discretion to strike an enhancement, and Stamps concluded the appropriate...